Delhi District Court
State vs 1) Ashiya Begum on 7 June, 2022
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL SESSIONS JUDGE (Electricity), EAST DISTRICT
KARKARDOOMA COURTS : DELHI
SC No.232/2022
FIR No.736/2021
U/s 135/150 of Electricity Act
PS New Usmanpur
State versus 1) Ashiya Begum
W/o Mohd. Saied
2) Mohd. Yusuf
S/o Abdul Rashed
3)Mohd. Saied
S/o Basheer Ahmed
All three R/o T-409, Gali No.20,
Gautam Puri, New Usmanpur, Delhi
Date of institution 05.03.2022
Arguments heard 30.05.2022
Date of judgment 07.06.2022
JUDGMENT
Brief facts of the prosecution case:-
1. The BSES Yamuna Power Limited (hereinafter referred as complainant company/BSES) through its Assistant Manager Sh. R.B. Yadav, had given a complaint U/s 135/150 of the Electricity Act, 2003 (hereinafter referred to as 'the Act') to the SHO, PS New Usmanpur with a prayer to register an FIR against the accused persons namely Ashiya Begum (registered consumer), accused Mohd. Saied (landlord) and accused Mohd. Yusuf (tenant/user) U/s 135/150 of the Act.
2. Succinctly the facts of the case are that on 28.09.2021 at about FIR No.736/2021 State vs Ashiya Begum etc 1 of 19 7.16 am, an inspection was carried out by the joint inspection team of the complainant company comprising of Sh. R.B. Yadav (Assistant Manager), Sh. Praveen (DET) and Sh. Sanjay Kumar (lineman) alongwith local police officials of PS New Usmanpur namely HC Dinesh, HC Dal Chand and other staff at the premises of the accused persons situated at H.No.T-
409, First Floor, Gali No.20, Gautam Puri, Shahdara, Pole No.YVR M 568, Delhi-110053. At the time of inspection, one meter bearing no.11250509 with reading of 17871 kwh of units was found installed there and accused/user was found indulged in direct theft of electricity by bypassing the said meter. The said meter was found bypassed by inserting one illegal Teflon wire at the input terminal of the said meter. Total connected load was found to the tune of 3.965 KW/NX+DX/DT which was being used for domestic as well as non-domestic purpose. Necessary videography of illegal tapping and connected load was recorded by the videographer Sh. Mohsin. The said wire, two core Yellow colour armoured/service cable and illegal Teflon wire were removed by the lineman and seized at the spot. The inspection report, load report, seizure memo and advisory notice were prepared at the spot and same were tendered to the accused/user but he refused to sign and accept the same. On the basis of inspection, the complainant company assessed the demand to the tune of Rs.1,33,783/-. Accordingly, following the guidelines of DERC, a theft bill was raised and sent to the accused but accused persons failed to deposit the said amount. Original CD of the said videography and certificate U/s 65B of the Evidence Act was also submitted alongwith the complaint. It is averred that accused Ashiya Begum is the registered FIR No.736/2021 State vs Ashiya Begum etc 2 of 19 consumer; accused Mohd. Saied is the landlord and accused Mohd. Yusuf is the user of the electricity. The acts of the accused persons fall within the provisions of section 135/150 of the Act. Thus, a prayer was made in the complaint to register an FIR against the accused persons U/s 135/150 of the Act.
3. The SHO handed over the said complaint (Ex.PW1/7) to Duty Officer with the direction to register an FIR and handover the investigation of the case to HC Brijesh. The Duty Officer registered the FIR No.736/2021 against the accused persons U/s 135/150 of the Act and marked the investigation of the case to HC Brijesh, the IO of the case. Thereafter, IO visited the inspected premises, served the accused persons with the notices U/s 41.1A Cr.P.C. Accused persons joined the investigation and he interrogated the accused persons and prepared interrogation reports. During investigation, accused Mohd. Saied produced copies of ownership documents of the inspected premises and his Aadhar Card which have been brought on record as Mark A (colly). Accused Ashiya Begum and Mohd. Yusuf also produced copies of their Aadhar Cards which have been brought on record as Mark B (colly). During inspection, it came to notice that accused Mohd. Saied is the owner of the inspected premises and accused Mohd. Yusuf is the user and the aforesaid electricity meter was installed in the name of accused Ashiya Begum. IO bound down all three accused persons vide Pabandinamas. After completion of investigation, charge-sheet was filed against the accused persons U/s 135/150 of the Act.
4. On 28.03.2022, a notice for the commission of offence U/s 135 FIR No.736/2021 State vs Ashiya Begum etc 3 of 19 of the Act was given to accused Mohd. Yusuf. A separate joint notice for the commission of offence U/s 135 r/w section 150 of the Act was given to the accused Ashiya Begum and Mohd. Saied. All three accused persons pleaded not guilty and claimed trial.
5. In order to prove its case against the accused, the prosecution examined the following witnesses:-
(5.1) PW1 Sh. R.B. Yadav is the Assistant Manager of the comlainant company. This witness deposed that on 28.09.2021, at about 7.16 am, an inspection was conducted by the enforcement team of BSES YPL comprising of himself, Sh. Praveen (DET), Sh. Sanjay Kumar (lineman) and Sh. Mohsin (videographer) at the premises of accused Mohd. Yusuf i.e. H.No.T-409, Ist Floor, Gali no.20, Gautam Puri, Shahdara, Delhi- 110053. During inspection, one meter no.11250509 was found installed in the name of co-accused Ashiya Begum and the accused Yusuf was the tenant of accused Mohd. Saied. PW1 further deposed that the said meter was found bypassed with the help of Black colour illegal Teflon wire which was connected from input terminal of the said meter and the accused/user was found indulged in theft of electricity in the aforesaid manner. The total connected load was found to the tune of 3.965 KW which was being used for domestic purpose as well as commercial purpose i.e. sewing work. At the time of inspection, accused/user was present at the spot and necessary videography of the inspection proceedings was done by the videographer Sh. Moshin. The CD containing videography of the inspection proceedings has been brought on record as Ex.PW1/1. During evidence, the CD was played on the laptop and PW1 identified the video FIR No.736/2021 State vs Ashiya Begum etc 4 of 19 which was recorded by the videographer during inspection. PW1 also identified the accused Mohd. Yusuf in the said video. The inspection report Ex.PW1/2 and the load report Ex.PW1/3 were prepared at the spot. The illegal wire and meter bearing no.11250509 were removed by lineman Sh. Sanjay Kumar and seized at the spot vide seizure memo Ex.PW1/4. During inspection, an advisory notice (Ex.PW1/5) was also issued to the accused. The entire set of documents was prepared at the site and tendered to the accused/user but he refused to sign and accept the same. On the basis of inspection, a theft bill of Rs.1,33,782/- (Ex.PW1/6) was raised and sent to accused. PW1 further deposed that on 02.10.2021, he lodged a complaint (Ex.PW1/7) with the SHO, PS New Usman Pur for registration of an FIR against the accused persons. During evidence, the case property i.e. meter no.11250509 alongwith Yellow colour armoured/service cable approx 2x10 (mm) square size and having length of four meter approx was produced and shown to the witness who correctly identified the said meter and wire as same which were removed and seized during inspection. The said meter alongwith service cable has been brought on record as Ex.P1 (colly).
(5.2) PW2 Sh. Praveen Kumar is the Diploma Trainee Engineer (DET). This witness was also one of the members of the inspection team and he has corroborated the testimony of PW1 and deposed on the similar lines of the testimony of PW1.
(5.3) PW3 Sh. Sanjay Kumar is the Lineman. This witness was another member of the inspection team and he has corroborated the testimony of PW1 and PW2. He also deposed that the illegal wires were FIR No.736/2021 State vs Ashiya Begum etc 5 of 19 removed by him and seized at the spot vide seizure memo Ex.PW1/4. PW2 and PW3 also identified the accused Mohd. Yusuf in the video contained in the CD Ex.PW1/1.
(5.4) PW4 Sh. Mohsin is the Videographer. This witness deposed that on 28.09.2021, at about 7.16 am, an inspection was conducted at the premises of accused Mohd. Yusuf and during inspection, on the instructions of team leader Sh. R.B. Yadav, he recorded videography of inspection proceedings. During evidence, the CD (Ex.PW1/1) was played and he has identified the video which was recorded by him at the time of inspection.
(5.5) PW5 ASI Brijesh Kumar (then HC) is the IO of the case. This witness deposed that on 08.10.2021, on the direction of SHO, a complaint (Ex.PW1/7) lodged by Sh. R.B.Yadav was handed over to Duty Officer for registration of an FIR. Accordingly, FIR No. 736/21 was registered and the investigation was marked to him. The copy of the FIR has been brought on record as Ex.PW5/1. PW5 further deposed that on 21.10.2021, he visited the inspected premises and served the accused persons with the notices U/s 41.1(A) of the Cr.P.C (Ex.PW5/2, Ex.PW5/3 and Ex.PW5/4). On the same day, all the accused persons joined the investigation and he interrogated them and prepared interrogation reports (Ex.PW5/5, Ex.PW5/6 and Ex.PW5/7). During interrogation, accused Mohd. Saied produced copies of ownership documents of the inspected premises and his Aadhar Card which have been brought on record as Mark A (colly). The other accused persons also produced copies of their Aadhar Cards which have been brought on record as Mark B (colly). During investigation, it came to FIR No.736/2021 State vs Ashiya Begum etc 6 of 19 notice that accused Mohd. Saied is the owner of the inspected premises and accused Mohd. Yusuf is the user of the electricity and electricity meter was installed in the name of accused Ashiya Begum. All the accused persons were bound down to appear before the court vide Pabandinamas Ex.PW5/8, Ex.PW5/9 and Ex.PW5/10. After completion of investigation, he filed the charge-sheet.
6. After completion of prosecution evidence, statements of all three accused persons were recorded U/s 313 Cr.P.C. All three accused persons admitted that an inspection was carried out at the aforesaid premises. They have also admitted that meter no.11250509 was installed in the name of accused Ashiya Begum. Accused Mohd. Yusuf has also not disputed that he was present at the spot at the time of inspection and necessary videography was done by the videographer. Accused persons have also not disputed the presence of accused Mohd. Yusuf at the spot at the time of inspection and aforesaid meter alongwith illegal wires was removed by the lineman. Accused persons denied the allegations of electricity theft. However, accused persons stated that they have settled the matter with the complainant company and they have also made the payment and an NOC has been issued. Accused persons did not lead any evidence to their evidence.
7. Final arguments have been heard from the Ld. Addl. PP as well as Ld. Counsel for the accused persons. During the course of arguments, Ld. Addl. PP submitted that at the time of inspection, one electricity meter No.11250509 found installed at the inspected premises in the name of accused Ashiya Begum. It is also submitted that inspected premises FIR No.736/2021 State vs Ashiya Begum etc 7 of 19 belongs to accused Mohd. Saied and during relevant time, user/tenant/co- accused Mohd. Yusuf was residing at the inspected premises and thus, accused Ashiya Begum being registered consumer and accused Mohd. Saied being landlord of the inspected premises let the user/co-accused Mohd. Saied commit direct theft of electricity. Accused Mohd. Saied was indulged in direct theft of electricity after bypassing the said meter with the help of Teflon wire which was inserted at input terminal of the said meter. It is further argued that the complainant company has proved its case against the accused persons beyond reasonable doubt through the testimonies of prosecution witnesses.
8. Ld. Defence Counsel, on the other hand, argued that accused persons are innocent and they have been falsely implicated in the present case. Accused persons have not committed any theft of electricity. It is further submitted that matter has already been settled with the complainant company and settlement amount has already been paid and an NOC has already been issued by the complainant company.
9. Before proceeding further and before dealing with the factual aspects of the present case, it is deemed appropriate to to firstly specify and discuss the relevant provisions of the Act which are required to be gone into for appropriate disposal of the case. The present case pertains to sections 135/150 of Electricity Act. The provisions of section 135/150 of the Electricity Act are reproduced as under:-
Section 135 Theft of electricity - (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or supplier as the case FIR No.736/2021 State vs Ashiya Begum etc 8 of 19 may be; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity, or
(d) uses electricity through a tampered meter; or
(e) uses electricity for the purpose other than for which the usage of electricity was authorized, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:
Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use -
(i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;
(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months, but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:
Provided further that in the event of second and subsequent conviction of a person where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use exceeds 10 kilowatt, such person shall also be debarred from getting any supply of electricity for a period which shall not be less than three months but may extend to two FIR No.736/2021 State vs Ashiya Begum etc 9 of 19 years and shall also be debarred from getting supply of electricity for that period from any other source or generating station:
Provided also that if it is provided that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. Section 150. Abetment. - (1) Whoever abets an offence punishable under this Act shall, notwithstanding anything contained in the Indian Penal Code (45 of 1860), be punished with the punishment provided for the offence. (2) Without prejudice to any penalty or fine which may be imposed or prosecution proceeding which may be initiated under this Act or any other law for the time being in force, if any officer or other employee of the Board or the licensee enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or thing whereby any theft of electricity is committed, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both.
(3) Notwithstanding anything contained in sub-section (1) of section 135, sub-section (1) of section 136, section 137 and section 138, the license or certificate of competency or permit or such other authorization issued under the rules made or deemed to have been made under this Act to any person who acting as an electrical contractor, supervisor or worker abets the commission of an offence punishable under sub-section (1) of section 135, sub-section (1) of section 136, section 137, or section 138, on his conviction for such abetment, may also be cancelled by the licensing authority:
Provided that no order of such cancellation shall be made without giving such person an opportunity of being heard.
10. There is a presumption mentioned in the third proviso of Section 135 (1) of the Electricity Act, 2003 which reads as follows:-
"Provided also that if it is proved that any artificial means or FIR No.736/2021 State vs Ashiya Begum etc 10 of 19 means not authorised by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer".
11. As per prosecution case, at the time of inspection, one electricity meter No.11250509 was found installed at the inspected premises in the name of accused Ashiya Begum. Accused Mohd. Saied was found to be landlord of the inspected premises and user/accused Mohd Yusuf was found to be user. At the time of inspection, accused Mohd. Yusuf was indulged in direct theft of electricity through illegal wire after bypassing the aforesaid meter by inserting Teflon wire at the input terminal of the said meter. Accused Ashiya Begum being registered consumer and accused Mohd. Saied being owner of the inspected premises, let the user/accused Mohd. Yusuf commit direct theft of electricity. Thus, the onus was on the prosecution to prove these allegations against the accused persons beyond reasonable doubt.
12. PW1 Sh. R.B. Yadav (Assistant Manager), PW2 Sh. Praveen Kumar (DET), PW4 Sh. Sanjay Kumar (Lineman) and PW5 Sh. Mohsin (videographer) are the material witnesses in this case. PW1, PW2 and PW3 have corroborated the allegations made in the complaint (Ex.PW1/7) and their testimony is in conformity with the documents i.e. inspection report (Ex.PW1/2), load report (Ex.PW1/3), seizure memo (Ex.PW1/4) and advisory notice (Ex.PW1/5). They have has also identified the accused Mohd. Yusuf in the video contained in the CD (Ex.PW1/1). PW4 Sh. Mohsin (videographer) has identified the video of the inspection proceedings contained in the CD (Ex.PW1/1).
FIR No.736/2021 State vs Ashiya Begum etc 11 of 19
13. PW5 IO ASI Brijesh Kumar deposed that during investigation, it was revealed that inspected premises belongs to accused Mohd. Saied and accused Mohd. Yusuf was user as well as a tenant of accused Mohd. Saied in the inspected premises. It was further revealed that aforesaid electricity meter was installed in the name of accused Ashiya Begum. All these facts have not been disputed by the accused persons in the cross-examination of PW5.
14. It is clear from the testimony of PW1, PW2 and PW3 that on 28.09.2021, at about 7.16 am, an inspection was carried out at the premises of accused persons by the inspecting team members/officials of complainant company and at the time of inspection, aforesaid electricity meter was found installed in the name of accused Ashiya Begum and this fact has not been disputed by the accused persons in the cross-examination of PW1, PW2 and PW3. It is further clear from the testimony of PW5/IO as well as statements of accused persons recorded U/s 313 Cr.P.C that the inspected premises belongs to accused Mohd. Saied and accused Mohd. Yusuf was user as well as tenant of accused Mohd. Saied in the inspected premises. It is further clear from the testimony of prosecution witnesses as well as video contained in the CD Ex.PW1/1 that the user/accused Mohd. Yusuf was indulged in direct theft of electricity through illegal wires by inserting Teflon wire at the input terminal of the said meter. Accused persons have not disputed the fact that at the time of inspection, meter was found bypassed by inserting Teflon wire at the input terminal of the said meter. Inspection proceedings were recorded by videographer and CD containing videography of the said inspection proceedings was brought on FIR No.736/2021 State vs Ashiya Begum etc 12 of 19 record as Ex.PW1/1. It is also clear from the testimonies of PW1, PW2 and PW3 that the meter no.11250509 and illegal wire were removed by the lineman and this fact has not been disputed by the accused persons in the cross-examination of these witnesses as well as in the their statements U/s 313 Cr.P.C. Accused Mohd. Yusuf also admitted that he was present at the spot at the time of inspection and necessary videography was done by the videographer. Perusal of cross-examination of PW1, PW2 and PW3 show that though, the accused persons endevaoured to dispute the factum of inspection, preparation of inspection documents, seizure memo and videography of the inspection proceedings, however, they have not specifically disputed the factum of preparation of the relevant documents, the contents and authenticity of the inspection report and CD containing videography of the inspection proceedings. Accused persons have not specifically disputed the genuineness of assessment of load assessed by the complainant as specified in the load report Ex.PW1/3. During evidence, PW1, PW2 and PW3 identified the video recorded by videographer as well as user/tenant Mohd. Yusuf in the said video. Accused persons have also not disputed the identity of the inspected premises depicted in the video contained in the CD Ex.PW1/1. In their statements U/s 313 Cr.P.C, accused persons have also admitted that inspected premises belongs to accused Mohd. Saied and accused Mohd. Yusuf was residing as a tenant in the inspected premises. The videography of the inspection proceedings was recorded by videographer and accused Mohd. Yusuf has been identified by PW1, PW2 and PW3 in the video contained in the CD (Ex.PW1/1) during their evidence and accused FIR No.736/2021 State vs Ashiya Begum etc 13 of 19 persons have neither disputed the identity of the accused Mohd. Yusuf nor disputed the contents of the video. Thus, inspection, presence of accused/user well as videography of the inspection proceedings conducted by the videographer stand proved.
15. In their statements, PW1, PW2 and PW3 have clearly deposed that meter no.11250509 was lying installed in the name of accused Ashiya Begum and accused/user Mohd. Yusuf was the tenant and the said meter was bypassed with the help of a Black colour illegal Teflon wires which was inserted at input terminal of the said meter and accused/user was indulged in direct theft of electricity in the aforesaid manner. It is also clear from the statement of PW5 as well as statements of accused persons recorded U/s 313 Cr.P.C that the inspected premises belongs to accused Mohd. Saied and at the time of inspection, accused Mohd. Yusuf was residing in the inspected premises as a tenant of accused Mohd. Saied. Thus, in view of settled provision of section 150 of the Act, accused Mohd. Saied being the landlord of the inspected premises and accused Ashiya Begum being registered consumer are liable for abetment of the offence of direct theft of electricity as they let the user/accused Mohd. Yusuf commit direct theft of electricity through illegal wire. Accused persons endevaoured to deny the fact that the accused/user was not indulged in any type of theft of electricity, however, it is clear that during evidence before the court, CD (Ex.PW1/1) containing video clip of inspection proceedings was played before the court which depicted the manner in which user/accused Mohd. Yusuf was found indulged in direct theft of electricity through illegal wire.
FIR No.736/2021 State vs Ashiya Begum etc 14 of 19
16. As per testimony of PW5 as well as statements recorded U/s 313 Cr.P.C, inspected premises belongs to accused Mohd. Saied and thus, it was his duty to ensure that no illegal activity is carried out in his premises. It is clear from the evidence of the prosecution witnesses that the user/accused Mohd. Yusuf was indulged in direct theft of electricity through illegal wire. It is not the case of the accused Mohd. Saied that he was not aware about the factum of direct theft of electricity being committed by the accused Mohd. Yusuf. The owner/accused Mohd. Saied has not specifically denied the factum of direct theft of electricity committed by the accused Mohd. Yusuf. It is clear from their statements recorded U/s 313 Cr.P.C, that accused persons have settled the matter qua theft bill with the complainant company and they have already paid the settlement amount and an NOC has also been obtained by them. In case, accused Mohd. Saied was unaware that co-accused Mohd. Yusuf has committed direct theft of electricity then he ought to have brought this fact to the notice of the complainant and he ought to have disassociated himself from the said illegal activity of his tenant/accused Mohd. Yusuf. However, it is clear that accused Mohd. Saied did not take any action in this regard against the co-accused Mohd. Saied and his aforesaid conduct speaks for itself that he was well aware of the illegal act of the co-accused Mohd. Yusuf. Thus, under these facts and circumstances, it can be very well said that once the accused Mohd. Saied had come to know about the said illegal activity of the co-accused, he ought to have taken appropriate action against the co-accused Mohd. Yusuf and he was also duty bound to inform the complainant company about the same, however, he did not do FIR No.736/2021 State vs Ashiya Begum etc 15 of 19 the needful though, he was well aware that co-accused/user Mohd. Yusuf is indulged in direct theft of electricity. Being registered consumer, accused Ashiya Begum has also remained silent and she did not take any action against the user/accused Mohd. Yusuf which indicates that she was also well aware that user/accused Mohd. Yusuf was indulged in direct theft of electricity. Thus, under these circumstances, it can be very well said that accused Mohd. Saied and accused Ashiya Begum have abetted the offence of direct theft of electricity and therefore, they are liable U/s 150 of the Act.
17. In view of the statutory presumption mentioned in the third proviso of section 135 (1) of the Act, once the prosecution successfully establishes the charges against the accused regarding the theft of electricity, it is to be presumed that accused has committed theft of electricity unless accused brings some evidence on record to rebut the presumption. In view of the discussions made in the preceding paras, it is held that the prosecution has proved the charges against the accused persons that the user/co-accused Mohd. Yusuf who was residing in the inspected premises as a tenant, was indulged in direct theft of electricity, in connivance with accused Mohd. Saied and accused Ashiya Begum and therefore, in view of the third proviso of section 135 (1) of the Electricity Act 2003, it is to be presumed that co-accused Mohd. Yusuf was indulged in direct theft of electricity, in connivance with accused Mohd. Raies and accused Ashiya Begum, if they are unable to rebut the statutory presumption.
18. The Hon'ble Supreme Court in case reported as '2001 (6) SCC FIR No.736/2021 State vs Ashiya Begum etc 16 of 19 16 titled as Hiten P. Dalal vs Bratindranath Banerjee' has laid down the law related to the rebuttal of statutory presumption. Relevant portion of the para no.16 is reproduced as under:-
"...Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard or reasonability being that of the 'prudent man'."
19. In view of the settled law, now it is to be seen if the accused persons have taken any defence to rebut the statutory presumption. Accused persons have simply stated in their statements recorded U/s 313 Cr.P.C that they are innocent and have been falsely implicated in this case. They stated that they have already settled the dispute and settlement amount has already been paid by them and an NOC has also been issued. Accused persons did not lead any evidence to their defence. If the co- accused Mohd. Yusuf was not indulged in direct theft of electricity or that he was using the electricity through any legal means, then the accused accused persons were liable to rebut the statutory presumption by disproving the allegations made in the complaint by leading relevant defence evidence. It is admitted position of fact that at the relevant time, inspected premises belonged to accused Mohd. Saied and accused Ashiya Begum was the registered consumer and co-accused Mohd. Yusuf was the user as well as a tenant in the inspected premises. It is clear from the evidence led by prosecution that at the time of inspection, co-accused Mohd. Saied was indulged in direct theft of electricity through illegal wire. Accused persons have not brought any material on record or lead any FIR No.736/2021 State vs Ashiya Begum etc 17 of 19 evidence to disprove all these allegations. Thus, it is held that accused persons have failed to rebut the statutory presumption. In this regard, this court is supported by the judgment of Hon'ble High Court of Delhi reported as 'Mukesh Rastogi vs North Delhi Power Limited' 2007 (99) DRJ108. The observations made by Hon'ble High Court of Delhi are reproduced as under:-
"....6. The contention of the appellant is that electricity supply was going through meter. Had the electricity been going to the appellant's premises through meter, the easiest way to prove it was by producing the electricity bills paid by the appellant to the complainant company. The very fact that the appellant did not prove a single bill showing payment of electricity charges fortifies the plea of the complainant company that electricity was being used by the appellant directly from LT Main by committing theft. Paid electricity bills would have been the best evidence to show that the appellant was using electricity through mere. Under section 106 of the Evidence Act, the onus was on the appellant to produce and prove such bills paid for the use of electricity. However, this was not even the case of the appellant either before trial court or in appeal that he had been using electricity through meter and had been paying bills of electricity as per meter. The appellant had only taken the stand that inspection was not valid inspection and the photographs were not proved properly".
20. In view of aforesaid discussions, it is held that the prosecution has proved beyond reasonable doubt that the co-accused Mohd. Yusuf was indulged in direct theft of electricity through illegal wire. It is also proved on record that inspected premises belongs to accused Mohd. Saied and he had let out the inspected premises to co-accused/user Mohd. Yusuf who was indulged in direct theft of electricity and accused Mohd. Saied and accused Ashiya Begum let the co-accused Mohd. Yusuf commit direct theft of electricity. Thus, accused Mohd. Saied and accused Ashiya Begum FIR No.736/2021 State vs Ashiya Begum etc 18 of 19 are guilty of abetment of offence of direct theft of electricity. Accordingly, co-accused Mohd. Yusuf is convicted for the offence punishable U/s 135 of the Electricity Act and accused Mohd. Saied and accused Ashiya Begum are convicted for the offence punishable U/s 135 r/w section 150 of the Electricity Act 2003.
Digitally
signed by AJAY
AJAY GUPTA
Date:
GUPTA 2022.06.07
17:54:41
+0530
(Ajay Gupta)
Addl. Sessions Judge (Electricity)
East/Karkardooma Courts/Delhi
Announced in open
court on 07.06.2022
FIR No.736/2021 State vs Ashiya Begum etc 19 of 19